The Facts Machine

"And I come back to you now, at the turn of the tide"

Sunday, October 30, 2005


Since Friday morning, my rough estimate is that I've read the equivalent of a couple hundred pages of articles and blog posts pertaining to the Fitzgerald press conference, the Libby indictment, and what the near (and far) future holds for the investigation. The thoughtfulness of the analysis I've read, even the wild, stab-in-the-darkish speculation, has been a testament to the analytical, investigatory, and creative potential of the blogosphere.

Then tonight I made the mistake of turning on a rerun of last night's Bill Maher, and saw Tony Snow thoughtlessly spew empty-headed RNC talking points. It made me wish I had one o' them Wonka lasers, so I could get inside the TV and shake him by the collars. ("Tony! Shut the fuck up about the 2004 Senate Intel Cmte investigation! You damn well know exactly what Pat Roberts and Dick Cheney made sure wasn't looked at!")

Okay, got that out of my system.

Here are the people whose posts on the current situation have interested/stimulated me the most:

--Jane Hamsher and the gang at firedoglake are all over the case, mostly focusing on the near future. In general the assumption tying all the posts there together is that the indictments against Libby are not the end of the story, but rather are Fitzgerald's attempt to put the heat on Scooter, to see if he'll turn and testify against someone higher up (probably Big Time) to escape a possible 30 years in prison (which would be a life sentence for a guy his age). Interesting posts along those lines can be found...
--Big Dick, the Big Squeeze and the Smoking Gun (Fitz is gunning for Cheney)

--If You Apply Heat You Get... (It's against the Bushies' interest for the Libby charges to go to trial because of the Iraq-themed circus it would set off, so they might want Libby to cut some sort of deal, but would Fitz be willing to make such a deal if it doesn't mean Libby would give him much?)
--Emptywheel, a contributor at The Next Hurrah, is going through the indictment with a fine-tooth comb, just click and scroll.

--Billmon, along with his always compelling quote-collection posts, has been puzzled by the indictments, writing a number of posts diving into the question of why Fitzgerald didn't charge Libby with violating the Espionage Act, or even the IIPA, given that (in Billmon's view) the text of the indictment contained sufficient evidence to allow Fitz to do so. Along those lines,
--Why Did Fitzgerald Throw Judy Miller In Prison? (That is, Fitz had a good perjury-etc case against Libby without Judy's testimony, and he didn't charge him with crimes where her testimony would have made a difference, so something doesn't add up...)

--The Man Who Wasn't There ("Official A", otherwise known as Karl Rove, is still in "deep legal doo doo")

--The Straight and Narrow (Initial reaction to the indictment/pressconf, we shouldn't expect Fitz to go beyond his mandate, and I'm not sure if charging Libby with non-EspionageAct or IIPA crimes constitutes "squeezing")
I think I know what's up, but we'll get to that.

--If you must read a right-of-center blog that's following the Plame case closely -- and ever since Glenn Reynolds baselessly called the issue "bogus" in December 2003, few righty bloggers are -- go with Tom Maguire's Just One Minute, provided you can wade through his frequent attacks on Joe Wilson.

--A lot of bloggers have linked to this fascinating analysis of Friday's developments by blogger and Memphis Flyer columnist Marty Aussenberg, aka Gadfly, who sees, just at Billmon does, that all the elements of the Espionage and IIPA statutes are in the indictment, yet comes up with a different angle on the charges that were actually brought:
All of the elements, at least of the Espionage Act (if not the Intelligence Identities Protection Act), have been made out in the indictment. So, why go to all the trouble of setting up the factual predicates for violations of the classified information statutes in the indictment (especially when he didn't have to) and then stop short of charging them? The explanation he gave during his press conference (i.e., that he was balancing the interests of the First Amendment with the wisdom of charging the crime) does't [sic] fly. Subpoenaing reporters, sending one to jail and threatening to do the same to another one demonstrate, I suggest, his less-than-overarching concern about the First Amendment. And, his expressed concern that the U.S. statute governing classified information not become subject to the loose application which has characterized its British analog (i.e., the “Official Secrets Act”) also rings hollow, especially given the fact that he trumpeted, loud and long, during his press conference the serious violations of national security the conduct in this case appears to have constituted.

No, the real reason to lay out as much factual detail as he did was for Fitz to show the world (and in particular, the world within the White House) that he has the goods, and that he won't hesitate to drop the dime on some additional malefactors, particularly, Cheney. Let's face it: Libby is only the consigliere to Cheney's don. Even though the threat of spending 30 years in the pokey will be a powerful incentive for Libby to cut some kind of deal that might include turning on his boss, the possibility of the additional charges of revealing classified information, particularly against Cheney, is even more powerful since, presumably, Cheney does't appear to be at risk of a truth-telling-related indictment.
--Another individual post making the rounds is an email printed by Andrew Sullivan along similar lines.

--The indispensible Digby has been all over the story too, in posts such as...
--On or Around September 26, 2003 (Libby's indictment shows us that the administration was betting that the media wouldn't tattle on them, and the bet worked... for a little while. Now, on the other hand, they're fucked.)

--Shaken, Not Stirred (A much-needed history lesson just in case anyone thinks Fitz is overstepping his mandate.)

--The Big Picture (This is going all the way to the top, even if Fitz doesn't go there, and even if the scope of his investigation remains narrow.)
--Lastly, many other leading lights of Blogtopia -- Kleiman, Marshall (esp on the Italy/Niger subplot), and Arianna (esp on the Judy Miller saga).

My take? I'll keep this relatively brief:

First of all, I'm tired of hearing and reading administration apologist pundits express mock-ignorance about the charges, pretending they're Martha Stewart-esque technicalities (a comparison I first read at Instapundit and then on some of his Roeper-to-Ebert suckups' pages). What's more, I'm through listening to the companion talking point that Fitz is charging Libby with covering up something that wasn't a crime because Fitz didn't charge him with an Espionage Act or IIPA offense at this time. Read the Libby indictment, all the evidence is there, Fitz just decided to go with the five charges he went with instead, and I have a theory as to why. (We'll get to that.)

These aren't semantics or hazy memory issues we're dealing with here. And certainly nothing related to oral gratification. The very, very Layman's version of the charges is that Scooter Libby made up a bullshit cover story, and told said bullshit cover story to investigators and prosecutors on multiple occasions. What's more is that yes, based on the evidence provided in the indictment, it looks like Libby was lying to protect his boss, one Richard Cheney.

Now, why didn't Fitz make a direct charge on the leak at this time? His demanding Miller and Cooper's testimony, his interviews of Valerie Plame's neighbors, these suggest that he was intent on making a direct charge. So why didn't he? My guess is that it was a discretionary choice on his part, with the sole purpose of squeezing Scooter Libby. The five charges filed against Libby carry a maximum total sentence of 30 years--comparable in effect to the punishment for espionage or leaking classified information on a CIA operative. (Scooter is in his 50's, so any long jail term is essentially a life sentence.)

So why perjury, obstruction and false statements instead of the other charges? Simple: It's the quickest, easiest route to convictions, the charges Fitz had the most blatantly obvious evidence against Libby for. I bet Fitz has the goods on Libby for both sets of charges, though probably a bit more for perjury etc, just on the basis that the other charges require a more intense prosecutory effort. What Fitz wanted out of Friday's indictments was to dangle 1) a lot of evidence, and 2) 30 years of hard time in front of Libby's face. Why? You know where this is going.

Fitz could've hit Libby (or even Rove, we'll see) on Espionage Act charges, but given the way Fitz has been known to work, that might constitute blowing his wad. Based on the body of the indictment, he probably has a good, passably prosecutable case against Libby on either the Espionage Act or IIPA. However, perhaps if he gets Libby to turn, Fitz would have an great case against someone even higher up on the just-mentioned statutes.

Think about it: If Libby were charged with violating one of those statutes, getting him to turn would be like saying "Well, I was going to charge you with a given crime under a very specific statute, but now that you talked, I'm going to go charge that guy with the same given crime under a very specific statute." I'm not a lawyer (my sister is on her way to law school, not me), but for some reason the above scenario seems too clunky to occur.

Hence, perjury, perjury, false statements, false statements, and obstruction of justice. 30 years dangling over Libby's head, like he were Rocky in a golden speedo. And the Espionage Act and IIPA statutes reserved for, to use a Watergate-ian term, "big[ger] enchiladas."

Or with yesterday's indictments, Fitzgerald could be all done with indictments.

Yet between the indictments mysterious references to "official A", conversations betwen Libby and Cheney, the various negotiations between Fitz and the attorneys involved (including Rove's and even Bush's personal lawyer... no, not Miers, the other one, Sharp), his refusal to end his investigation or release witnesses from his request that they don't go blabbing around about the case, he's given us an entire tree's worth of tea leaves to peruse. What a weekend. Good thing we have that extra Daylight Savings hour.

-- -- -- -- --

By the way, the answer to tonight's trivia question is

1. Joe Wilson (duh)


2. Marc Grossman, the mysterious "Under Secretary of State" who was among the government officials who informed Libby about Joe Wilson's wife. There was speculation that the unnamed official was John Bolton, but it looks like that wasn't the case.

As the trivia question noted, they both attended UCSB at the same time. I don't know what to make of that, if anything. Next time I'm at the bookstore I'll be sure to thumb through the index of Wilson's book. That is, if Scooter hasn't bought up and hoarded all the remaining copies.


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